For cash-strapped police in Michigan, asset forfeiture bills could be a blow

Update: Michigan civil asset forfeiture bills headed to Gov. Gretchen Whitmer

As the opioid epidemic ramps up, police across Michigan are staring down the probability of losing some of the financial resources they use to fight drug criminals.

That’s the viewpoint, at least, of many in law enforcement who oppose major legislation that they say could cost them a portion of a $13 million revenue stream and which both Republicans and Democrats are eager to sign off on: civil asset forfeiture reform.

Nearly identical state legislative packages — one sponsored by Sen. Peter Lucido, R-Shelby Township, in the Senate, and a second in the House by Rep. Jason Wentworth, R-Clare, and Rep. David LaGrand, D-Grand Rapids — would require a criminal conviction before police can keep someone’s assets (such as cars, cash, or homes) seized in connection with a suspected crime.

Opinion: Softening Michigan civil asset forfeiture laws helps drug dealers

Even when people are not convicted or charged following an arrest, many still must go to court to get their property back, sometimes accruing hefty legal fees. And because police departments often keep what they take and add it to their budgets, proponents of the legislation say the current law incentivizes law enforcement to abuse the system.

“This is going to provide a lot of justice for a lot of our citizens, particularly some of our poorest and most vulnerable citizens,” LaGrand said of his bill on the House floor in late February.

LaGrand, Wentworth and Lucido are still discussing what they characterize as small differences between the bills to determine which will receive a final vote and likely go to the Governor. The House bills are awaiting a hearing in Senate committee and the Senate bill is awaiting a vote on the House floor.

Groups as diverse as the free-market Mackinac Center for Public Policy and the left-leaning ACLU support the proposed legislation. Banking groups, a cannabis advocacy group, racial equity groups and more have joined the chorus. For Democrats, it’s a matter of social justice. For Republicans, it’s about personal liberty and limiting the reach of government.

Standing squarely on the other side are cops, who say the pending laws would bind their hands and unleash drug dealers upon Michigan’s cities, armed with the cash they’d now be allowed to keep.

“It is going to have a negative effect upon narcotics enforcement at a time when we’re in an epidemic fight with the opioid problem,” said Robert Stevenson, executive director of the Michigan Association of Chiefs of Police, who said the bills would leave many police departments without the resources to fund narcotics teams. “Now we’re going to eliminate people that are fighting that fight.”

Undetermined impact

Exactly how much cash police departments would lose is unclear. The Michigan State Police said that law enforcement agencies across the state took in more than $13.1 million in cash and property in 2017, the most recent year for which there is data.

Police collected those funds from nearly 7,000 instances of forfeiture, the vast majority of which were connected to alleged drug crimes. In nearly 1,000 of the forfeiture cases, the person was not charged or convicted of the crime associated with the forfeiture.

That money can be used to “enhance enforcement,” such as buying new vehicles, paying officers overtime and caring for canine units. Most often, asset forfeiture funds are used for technological equipment such as records management systems and mobile data terminals or traditional equipment like bulletproof vests.

But not all of that money would be lost under the current bills: The new legislation requires conviction, but provides exemptions for amounts over $50,000 and for instances in which no one claims the property or the defendant enters a plea agreement.

These exemptions were enough to convince the Michigan State Police and Michigan Sheriff’s Association to remain neutral, rather than oppose, the bills. They’d prefer things stay as they are, but if the bills must pass — and they’re barrelling toward the governor’s desk — this version is better than past versions.

“We saw the handwriting on the wall and we moved our position to neutral,” said Blaine Koops, CEO and executive director of the Michigan Sheriff’s Association. “Do we necessarily like it? Absolutely not. But we also understand the political reality.”

The Michigan State Police report on seized property does not identify which departments bring in the most through asset forfeiture or how those departments used that money. However, data obtained through public records requests to Michigan State Police by the Mackinac Center and provided to Bridge indicate large police departments in metro Detroit could face the biggest revenue losses if police forfeiture actions are reined in.

Among those near the top of the list is the Oakland County Sheriff’s Office, which had 409 property seizures in 2017 based on the MSP data obtained by the Mackinac Center. Oakland County Undersheriff Michael McCabe estimated the total amount his department collected that year was around $1 million.

But McCabe, like leaders of other police organizations that spoke with Bridge, said his narcotics team wouldn’t face budget cuts as a direct result of the legislation because the department doesn’t rely on asset forfeiture funds to pay for essential law enforcement work.

“I don’t see any of the local police chiefs taking their people out because they’re not making a profit on it, anyway,” McCabe said. “We are not in the business to make money, that's not what we’re about. We’re in the business to take drugs and drug dealers off the street.”

The Oakland County Narcotics Enforcement Team doesn’t fund its work through forfeiture, McCabe said. It uses that money for equipment such as sniper rifles and defibrillators.

That means it’s unlikely any positions would be eliminated should the bills pass, McCabe said. Rather, the drug team would go to the local Board of Commissioners — which already approves each forfeiture, he said — to ask for funding for equipment the team used to buy with forfeiture funds.

McCabe said the nearly $1 million collected through forfeiture is split among 16 agencies that contribute to the area’s narcotics enforcement team (a common practice throughout the state), which amounts to around $62,000 per agency. On narcotics enforcement alone, Oakland county law enforcement agencies spend around $5.2 million every year, he said; far more than they recoup through forfeiture.

Asset forfeiture funds do help pay for investigations by Michigan State Police’s multijurisdictional task forces that cover multiple cities and counties across the state, said spokesman First Lieutenant Tim Fitzgerald. That means the forfeiture bills could harm that police work if they becomes law.

“Will operations be impacted by the loss of forfeiture funds? Absolutely,” Fitzgerald said. “If that happens we would be looking to the legislature to help us fill those holes.”

Unintended causes and consequences

The Michigan Association of Chiefs of Police, the only law enforcement agency publicly opposing the bills, says the frustration is not over the money lost but rather the loss of an important tool to lock up drug dealers.

Police can’t charge people with drug crimes unless there are drugs present, Stevenson of the Michigan Association of Chiefs of Police said. He said even if they came across people with a room full of cash, scales and ledgers tracking sales, they couldn’t charge them without also finding drugs.

Dealers intentionally keep product elsewhere to exploit this loophole and would adjust how much they carry at once to be under the $50,000 threshold, he said, and that’s why any legislation requiring a criminal conviction should create a lower threshold for exemption.

Lucido, sponsor of the Senate bill who spent decades as a criminal defense attorney, said “there’s no logic in what the police are saying.”

“I’m concerned about how much have they gained over the years that they shouldn’t have had the right to take and forfeit without ever changing somebody rather than how much they’ll lose,” Lucido said, adding that he’s also spoken with police officers who feel the current legislation will leave them all the necessary tools to fight drug crime.

“Here’s the bottom line, a loss of liberty or a loss of property is a constitutional violation.”

Some in law enforcement and in the legislature say police would have to rely less on asset forfeiture funds if local governments were funded properly. The Michigan Municipal League estimates municipalities have suffered more than $8 billion in revenue sharing cuts from the state since 2008, making it far more difficult to afford a robust police force. In some rural areas, property values are falling and cities are deeply in debt.

“We put a lot of communities in some precarious situations because we have not been funding them,” said Democratic Rep. Christine Greig, the House Minority Leader. “(But) that shouldn’t come into the talk about civil asset forfeiture. What’s the right policy here?”

It’s important to protect people’s rights, House bill sponsor Wentworth, the Republican from Clare, told reporters when his bill passed the chamber in late February.

“This bill was about protecting due process rights for our citizens, not about budgeting or individual sheriffs’ departments,” Wentworth said. “It's about the state as a whole protecting the citizens of our state.”